Oliver Wendell Holmes

by Stephen Budiansky

  Holmes’s own record on appeal was respectable: about four-fifths of his rulings at trial were upheld by the full court, one-fifth were overturned. As a member of the full court he participated in reviewing his own decisions, and in a few instances he actually wrote the affirming opinion himself. Twice, he wrote the full court’s decision overruling his own previous judgment at trial, apparently after being convinced by his brethren that he had failed to properly apply a relevant precedent, which showed a certain manful willingness to face up to mistakes.50

  A MORE DIRECT chance to see his theoretical ideas about the law put into action came in dozens of important cases Holmes tried that raised new questions of law amid the strains of a growing and urbanizing society.

  From 1860 to 1880 the population of Boston doubled, half of the increase coming from immigration and a rising birthrate and half from the absorption of outlying neighborhoods. By 1880, 80 percent of Massachusetts residents lived in urban places, a huge change from the village and rural landscape of just a few decades earlier. The demand for city services and new public utilities supplying gas, electricity, and telephones created new kinds of work and a vastly expanded role of municipal government, constructing and operating schools, transit networks, water and sewage, police and fire departments.51

  By the 1880s Boston’s horse-drawn streetcars covered 560 miles of track (and employed eight thousand draft horses); by the end of the decade Boston would be among the first cities to begin running electric streetcars, and in the 1890s would be the first to complete the changeover from horsepower to electricity on its street railways and would begin work on the nation’s first subway. Electric streetcars tripled the distance commuters could easily travel from home to work, further stimulating the suburbanization of outlying towns.52

  New England still led the country in textile manufacturing, and 80 percent of the region’s entire textile industry was located within sixty miles of Boston, but the Civil War had struck a blow to the region’s traditional industries that they would never recover from. The legion of skilled mechanics who had built and maintained the mills’ custom-made equipment were no longer needed as mass production standardized the machinery, and the new high-speed ring-spinning machines being installed in Lowell could be tended by largely unskilled women and children, in place of trained adult males.53

  Boston remained a center of innovation, with machine shops, metal fabricating, and instrumentation and electrical companies, but the very nature of work was changing as the relation between employer and employed became more impersonal, and factory owners sought to regulate the hours and behavior of their workforce. And even as the Irish were beginning to be an accepted part of the city’s fabric, a new flood of immigrants, mainly Italians and Jews from Russia, Poland, and Lithuania, were arriving and by the mid-1880s had overtaken the Irish among the city’s newest immigrants.54

  All of these forces created challenges to a legal system that was still rooted in forms and rules that had evolved in a society of farmers and small tradesmen. The question was whether the law was still flexible enough to adapt to “the felt necessities” of a time that was changing more swiftly than ever.

  At least in Holmes’s hands, it generally was. Throughout the 1880s and 1890s he tried a number of cases that directly took on the collisions of the new industrial and financial age with the law’s traditional ideas about property, competition, and morals. Disputes over the siting of bridges and railroad crossings, purchase of land for schools, assessment of taxes for road improvements, the decisions of school boards and corporations, and the responsibility of employers for the safety of unskilled and often non-English-speaking workers created a raft of cases.

  Typical of the new problems was the complaint of the owner of a millpond on the Concord River in Lowell that Holmes heard in his equity session in 1884. Since 1841 the city had been directing water from two street sewers into the pond. For the first thirty years the water had mainly consisted of surface runoff and sand, and the owner had used the reservoir for both manufacturing and drinking. But with the introduction of public water in 1873 and the installation of indoor water closets in houses on the streets, a constant flow of “house sewage of a noxious character” had been filling the pond, giving off foul gases and forming a layer of ooze and sludge two and a half feet deep at the bottom.

  The owner sought an injunction against the city to stop the flow and remove the accumulated deposits. Holmes rejected the city’s claim that it had acquired a right by longtime use, noting that the owner could not have anticipated back in 1841 the changes that urbanization and indoor plumbing would bring, and ordered the city to halt the discharges and pay for at least a portion of the cleanup.55

  Other cases confronted questions about economic relations in an age of corporations, distant communications, and financial markets that spanned the nation. Holmes consistently ruled that both the common law and statutes passed by the legislature had to be interpreted in terms of their actual effects in the real world, and not by resort to traditional formulas or dictionary definitions.

  Traditionally, for example, the common law generally declined to recognize contracts in restraint of trade, such as agreements forbidding the seller of a business to open a new, competing business for a set period of time. At most, the courts would enforce such noncompete agreements only if they were restricted to the immediate locality, to protect the so-called goodwill in a business a buyer had purchased.

  But when one of the owners of three electrical supply companies that had agreed to merge violated the terms of his noncompete agreement by establishing a new electrical business in Boston, Holmes issued an injunction against him after finding that “the business of the plaintiffs is of a nature that may extend over the whole country.” In upholding his decision, the full court noted that “provisions which are reasonably necessary for the protection of the good will of many kinds of business are very different now from those required in the days of Queen Elizabeth,” when the common law first took notice of the problem. The ease with which someone could change professions or businesses in the modern era, and the ability of manufacturers from all over the world to compete for markets everywhere, had changed the old rationale that such agreements could harm competition or leave a community with only a single seller of a necessary good or service.56

  Holmes was more willing than the full court, however, to recognize the reality of new financial markets in the case of a Boston brokerage house that had speculated heavily in pork and other commodities on the Chicago Board of Trade. The brokerage had entered into more than $500,000 in futures contracts over a period of thirty days, losing $23,042.84 when the investments failed to pay off. The Chicago Board sued to collect the debt, and on an auditor’s report Holmes found for the board, declining to rule on a motion for the brokers that because their clients had no warehouses, no intention of receiving the goods, and had agreed merely to settle the difference between the contracts and market price when they came due, the transactions were unenforceable “wagers.”57

  But when the case reached the full court, it ran directly into the traditional-minded views of the law of Chief Justice Walbridge Abner Field. Holmes did not write a dissent to Field’s decision for the court overturning his finding at trial, but did take the extraordinary step of carrying on his argument with Field in a memorial remembrance of his predecessor on his death in 1899. Holmes said that Field conceived of the law not as “an empirical product of history,” but as “embodying absolute right” and “general principle.” In a clear allusion to the brokerage case, Holmes went on to observe, “If a contract struck him as aiming at a gambling result, he would not enforce it, however much his refusal might encounter the daily practice of a whole board of brokers. He had his view of policy, and he did not doubt that the law agreed with him.” Holmes had many warm things to say about Field in his tribute, but just could not let it go when a matter that so touched his fundamental thinking about the law was concerned.58

  IN
TERPRETING A STATUTE enacted by the legislature poses its own special set of problems for a judge, but here too Holmes tried to ask how the law actually functioned in society when applying it to specific cases in his courtroom. In 1883 the Massachusetts legislature passed a law intended to insure that laborers brought into the state to build the Cape Cod Canal would not become paupers requiring public support. The canal company was required at the outset to place $200,000 in a fund to pay “all claims for labor performed or furnished in the construction” of the canal. The venture failed, and among those left unpaid were its president, chief engineer, and clerks, who then brought a claim against the fund for their salaries.59

  Holding that white-collar work was not “labor” within the meaning of the statute, Holmes ruled that they were not eligible for a payout—and he pointedly rejected the voluminous efforts of their attorneys to show how the words “labor” and “construction” were defined in other laws. “A word is not a crystal, transparent and unchanged,” Holmes would later write in a U.S. Supreme Court decision that turned on the definition of the word income: “it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Or, as he wrote in another case that involved interpreting the intent of the legislature, “It is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before.”60

  There were foreshadows, too, of key threads of his future jurisprudential philosophy on the Supreme Court in several trials in which he confronted questions about the limits of government power. One in particular, Bent v. Emery, strikingly anticipated his long-running battle on the Supreme Court against the absolutist view of the conservative majority which regularly overturned economic regulation as an infringement of “property” or “liberty,” while resorting to a euphemism Holmes always loathed—“police power”—to excuse the inevitable exceptions. He would always consider that a mealymouthed excuse for facing facts, and an evasion of the duty to weigh the real competing interests at stake. And it gave him an opportunity to reiterate his grown-up philosophy that everything ultimately comes down not to simplistic absolutes, but to matters of degree:

  We assume that one of the uses of the convenient phrase, police power, is to justify those small diminutions of property rights, which, although within the letter of constitutional protection, are necessarily incident to the free play of the machinery of government. It may be that the extent to which such diminutions are lawful without compensation is larger when the harm is inflicted only incident to some general requirement of public welfare. But whether the last mentioned element enters into the problem or not, the question is one of degree.61

  He similarly ruled that it was within the authority of the town council of Taunton to spend $200 on band concerts under a statute authorizing small appropriations to celebrate holidays “and for other public purposes.” Although public concerts “look rather more obviously to increasing the picturesqueness and interest of life than to the satisfaction of rudimentary wants,” Holmes wrote in his decision, “we know of no simple and merely logical test by which the limit can be fixed. It must be determined by practical considerations. The question is one of degree.”62 That would be his watchword on the bench for a half century to come.

  CHAPTER 8

  Labor, Capital, and Dames

  Soon after Holmes’s appointment to the Massachusetts high court, he and Fanny began looking for a house, but after one attempt to involve her husband in the process, Fanny announced that he had better leave it all to her.

  “The next thing I heard was an enquiry if I would dine that night at No. 9 Chestnut Street,” Holmes recalled. “After I gave my august consent to this house,” Fanny went to work “altering and getting it into shape, determining what should be my library and even the color of the shelves against the will of the architect and coming out clearly right.” They moved in at the end of 1883.1 The house still stands on a historic block of brick townhouses one block north of the Common, in the shadow of the State House.

  Throughout their marriage Holmes knew better than to second-guess her when it came to running the household. He handled the checkbook and bills, but left just about everything else to Fanny. “If my wife should consult me as to the household I should be an imbecile,” he once told Lewis Einstein. “My function there is that of God, a terrific idol to be appealed to on condition that it remains dumb.”2

  Fanny was such an intensely private person that she left few hints of her views of their marriage and life together. Holmes’s friends who managed to catch glimpses of her depth all liked and admired her, but her shyness and deliberate isolation remained the most visible feature of her character. That has led some of Holmes’s biographers, with little solid evidence, to portray her as an odd, even unstable figure. Recalling their long life together shortly after her death in 1929, Holmes acknowledged to Einstein, “I like solitude with intermissions, but she was almost a recluse. . . . She shocked Gifford Pinchot once by saying, ‘I have no friends’; and it was true that there was no one except me with whom she was very intimate.” Fanny wrote very few letters; “nothing short of a charge of dynamite . . . will get even a line out of her,” Holmes once explained to Ethel Scott, who had worried something was amiss between her and Fanny when she did not reply to her letters.3

  Fanny was also distant from her family, and never comfortable in Boston society—though as one family friend recalled, “Boston society was not a cordial one” then. One relation remembered her literally hating her sister Mary, as well as the snobbery and smugness of the Wigglesworth family that she had married into.4

  There was much speculation, too, that she was bitterly unhappy over her husband’s flirtations with other women. “There is something so grim as to be out of nature in that poor woman’s life and character,” Alice James wrote in her diary in 1889. “What is there but ugliness in any relation between two beings which doesn’t work to soften their hearts and open their minds to their kind?”5

  Yet those who were able to see the pair in unguarded moments sensed something very different about their relationship. Several of Holmes’s secretaries in Washington who got to be favorites of Fanny’s wrote affectionately of her strength of character and her sharp wit that was every match for her husband’s. Tommy Corcoran said later that “in many ways, she was stronger than her husband and she guided him through his times of crisis with the courage that accepts and faces the problems of life.” Einstein also remarked on her imperturbability, saying that she “would keep cool in the crater of Vesuvius”; and after her death he told Holmes, “I recall on one or two occasions the real warmth of her heart which she did her best to hide, and there was true generosity in her sympathy for those who needed it.”6

  John E. Lockwood, who was Holmes’s secretary the year Fanny died, also noted “the artistry” with which she always kept her husband “on his toes.” Every April 1 she played some silly practical joke on him, accompanied by a crude stick figure drawing announcing “Aprillie Foollie,” or the like. One year he arrived at his desk to find the ink bottle knocked over and a huge ink blot almost completely covering a just-completed opinion. On closer inspection the “blot” turned out to be a cut-out piece of black paper.7

  Corcoran sent Felix Frankfurter a verbatim account of a typical bit of Holmes-Fanny repartee he witnessed. Fanny had interrupted her husband and Lockwood while they were working through a long list of petitions asking the Court to accept a case for review.

  Holmes (to Lockwood): “Remove this impediment to the business of the nation.”

  Fanny: “Justice Holmes!”

  Holmes: “Madam?”

  Fanny: “Sir, I have been reading this morning of a woman who divorced an unimaginative husband—and kept him around the house for a handyman. I hereby give you notice that if I am ever again treated in this manner, I shall divorce you in like manner—and keep you around the house to p
ay the bills!”8

  She addressed him, at least in front of others, as “Holmes” or “Holmes J.” He often called her “woman.” But their longtime servants remembered their being very affectionate and happy with one another when no one else was around to watch. His pet name for her was “Dickie” or “Dickie bird.” Charlie Buckley, Holmes’s driver for nearly all the years he was in Washington, told Alger Hiss that when they would get into the back seat and pull the lap rug over them, they would kick each other in the shins like “flirting adolescents.”9

  Agnes Meyer recalled an indelible scene of their marriage she witnessed one day near her home in Washington. She had always felt that Fanny had both a “brilliant” and “subtle” mind to which Holmes owed much, as few others were aware. But she also felt that she had glimpsed in their marriage a “relationship between man and wife . . . of the rarest beauty.” That day on Connecticut Avenue she saw the couple, then in their eighties, strolling ahead of her. So absorbed were they in each other that, at one point, “they stopped, oblivious of the passersby, and conversed with the intensity of a young couple under the spell of first love.”10

  After Fanny’s death, Holmes told several friends that “for sixty years she made life poetry for me,” a phrase that some took as a poetic metaphor itself, but which he meant a little more literally than perhaps they realized. He recalled times she had noticed and tended to the small beauties of life that might have passed him by but for her. Once, remembering their lean early days at their apartment at 10 Beacon Street, he recalled to her how she had brightened their life: “You even made roses bloom on a broomstick.”11

  And one day in 1910, when they were driving between Beverly and Gloucester, she made them stop at a farmhouse where a small sign, in the style of a beautifully illuminated manuscript, announced “Robert W. Hyde, Limner.” In a letter to his friend Ethel Scott he wrote at the time, Holmes described Fanny’s beautiful and serendipitous discovery: